BILL ANALYSIS                                                                                                                                                                                                    



                                                          SB 1876
                                                         Page 1

Date of Hearing:  June 25, 1996
Counsel:          Jennifer P. Anderson


                ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                      Paula L. Boland, Chair

     SB 1876 (Solis) - As Proposed to be Amended in Committee


Majority vote

 SUMMARY:  Establishes a general rule of admissibility in criminal  
domestic violence cases for evidence that the defendant has  
committed acts of domestic violence on other occasions.   
Specifically,  this bill:

1) Creates an exception to the general rule against the  
   admissibility of character evidence for domestic violence cases  
   so that in a criminal action in which the defendant is accused  
   of an offense involving domestic violence, evidence of the  
   defendant's commission of other domestic violence will  
   generally be admissible to show the defendant's disposition to  
   commit such offenses.

2) Expressly states that the court shall maintain authority to  
   exclude evidence if its probative value is substantially  
   outweighed by its prejudicial effect under Evidence Code  
   Section 352. 

3) Expressly states that the provisions of this bill shall not be  
   construed to limit or preclude the admission or consideration  
   of evidence under any other statute or case law. 

4) Requires that in an action in which evidence is to be offered  
   under the provisions of this bill, the people shall disclose  
   the evidence to the defendant, including statements of  
   witnesses or a summary of the substance of any testimony that  
   is expected to be offered, at least 30 days before the  
   scheduled date of trial or at a later time as the court may  
   allow for good cause.

5)  Provides that evidence of acts occurring more than 10 years  
before the charged offense is inadmissible under the provisions of  
this bill, unless the court determines that the admission of this  
evidence is in the interest of justice. 

6) Defines "domestic violence" to mean "abuse committed against an  
   adult or a fully emancipated minor who is a spouse, former  
   spouse, cohabitant, former cohabitant, or person with whom the  
   suspect has had a child or is having or has had a dating or  
   engagement relationship."   This is the definition of domestic  
   violence found in existing Penal Code Section 13700. 

 FISCAL EFFECT:  None








                                                          SB 1876
                                                         Page 2

 EXISTING LAW: 

1) Provides that, with certain exceptions, evidence of a person's  
   character or trait of character (whether in the form of an  
   opinion, evidence of 
reputation, or evidence of specific instances of conduct) is  
inadmissible when offered to prove the person's conduct on a  
specific occasion.  However, evidence that a person committed a  
crime, civil wrong, or other act may be admitted if relevant to  
prove some fact other than the person's disposition to commit such  
an act, such as proof of motive, opportunity, intent, preparation,  
plan, knowledge, identity, absence of mistake or accident.   
(Evidence Code Section 1101.)

2) Provides the following exceptions to the general rule against  
   evidence of character or disposition:

    a)  The defendant in a criminal action may offer evidence of  
       his/her good character (in the form of an opinion or  
       evidence of reputation) and the State may offer rebuttal to  
       such evidence.  (Evidence Code Section 1102.)

    b)  The defendant in a criminal action may offer evidence of  
       the victim's bad character (in the form of an opinion,  
       evidence of reputation, or evidence of specific instances  
       of conduct) and the State may offer rebuttal to such  
       evidence.  (Evidence Code Section 1103(a).)

    c)  The State in a criminal action may offer evidence of the  
       defendant's violent character (in the form of an opinion,  
       evidence of reputation, or evidence of specific instances  
       of conduct) if the defendant has offered evidence of the  
       victim's violent character.  (Evidence Code Section  
       1103(b).)

    d)  The State, in a criminal action in which the defendant is  
       charged with a sexual offense, may offer evidence of the  
       defendant's commission of another sexual offense or  
       offenses, to show the defendant's disposition to commit  
       such offenses.  (Evidence Code Section 1108.)            

3) Provides that a court, in its discretion, may exclude evidence  
   if its probative value is substantially outweighed by the  
   probability that its admission will:  (a) necessitate undue  
   consumption of time, or (b) create substantial danger of undue  
   prejudice, of confusing the issues, or of misleading the jury.   
   (Evidence Code Section 352.)

4) Defines "domestic violence" to mean "abuse committed against an  
   adult or a fully emancipated minor who is a spouse, former  
   spouse, cohabitant, former cohabitant, or person with whom the  
   suspect has had a child or is having or has had a dating or  
   engagement relationship."  This bill defines "abuse" to mean  
   "intentionally or recklessly causing or attempting to cause  
   bodily injury, or placing another person in reasonable  
   apprehension of imminent serious bodily injury to himself or  







                                                          SB 1876
                                                         Page 3

   herself, or another." (Penal Code Section 13700.)

 BACKGROUND:  

1)   According to the author, "SB 1876 provides that a defendant's  
other acts of domestic violence, whether committed upon the victim  
of the charged offense or another victim, are admissible to show a  
defendant's disposition to commit acts of domestic violence, in  
domestic violence prosecutions.  This section is modeled on the  
recently enacted Evidence Code 1108, which accomplishes the same  
for evidence of other sexual offenses, in sexual offense  
prosecutions.  This measure is necessary to:

   a)  Remedy the Evidence Code's current inadequacy in  
   prosecutions 
involving domestic violence.

   b)  Give jurors the crucial information that they need to come  
   to just decisions in prosecutions involving domestic violence.

   c)  Maintain proper safeguards for defendants.

   The current scheme of admissibility for evidence of other bad  
   acts is inadequate in the area of domestic violence.  Often  
   other acts of domestic violence committed on the current victim  
   or another victim are excluded as `too prejudicial' to the  
   defendant.  Even where other acts of domestic violence are  
   admitted, the most logical inference, the propensity inference,  
   is strictly forbidden.  This scheme insulates defendants and  
   misleads jurors into believing that the charged offense was an  
   isolated incident, an accident, or a mere fabrication.

   For example, in the trial for the killer of actress Dominique  
   Dunne, several prior violent acts committed by the defendant on  
   the victim were excluded as too prejudicial.  Moreover,  
   although the defendant's former girlfriend was available to  
   testify to the fact that the defendant had:  broken her nose,  
   collapsed her lung, and punctured her eardrum, all of this  
   evidence was excluded from the trial.  Not surprisingly, since  
   the jurors were not given full information, the jurors did not  
   return a conviction for murder.  Rather, they found the  
   defendant guilty of voluntary manslaughter, on the theory that  
   this was an exceptional, isolated incident.  SB 1876 remedies  
   these inequitable results by providing jurors with a more  
   accurate picture of the defendant and his behavior.

   The propensity inference is particularly appropriate in the  
   area of domestic violence because on-going violence and abuse  
   is the norm in domestic violence cases.  Not only is there a  
   great likelihood that any one battering episode is part of a  
   larger scheme of dominance and control, that scheme usually  
   escalates in frequency and severity.  Without the propensity  
   inference, the escalating nature of domestic violence is  
   likewise masked.  If we fail to address the very essence of  
   domestic violence, we will continue to see cases where  
   perpetrators of this violence will beat their intimate  







                                                          SB 1876
                                                         Page 4

   partners, even kill them, and go on to beat or kill the next  
   intimate partner.  Since criminal prosecution  is one of the  
   few factors which may interrupt the escalating pattern of  
   domestic violence, we must be willing to look at that pattern  
   during the criminal prosecution, or we will miss the  
   opportunity to address this problem at all.

   Moreover, victims of domestic violence frequently are unable or  
   unwilling to cooperate in the prosecution of their batterers.   
   Victims may not cooperate because of a fear of retaliation, the  
   threat of retaliation, and the threat of economic loss.  SB  
   1876 addresses this problem by allowing former victims of the  
   defendant to testify about the abuse they experienced.  A  
   former victim is less likely to be facing an immediate threat  
   from the defendant and will likely be more willing to testify  
   against him/her.

   SB 1876 adequately protects defendant's rights.  This bill  
   merely makes other acts of domestic violence admissible; it  
   does not mandate admission.  The specific retention of Evidence  
   Code 352 allows a judge to exclude the other acts if they are  
   more prejudicial than probative.  Hearsay rules will remain in  
   effect to control what forms of evidence are admissible.  
Notice requirements will allow defendants adequate time to prepare  
a response to any evidence offered under this code section.  The  
use of the Penal Code definition of `domestic violence' narrowly  
tailors the scope of this legislation to intimates and former  
intimates.  Finally, acts occurring more than ten years prior to  
the charged offense will not be admissible under this code section  
unless the court finds that it is in the interest of justice."

2) Existing law provides that, with certain exceptions, evidence  
   of a person's character or trait of character is inadmissible  
   when offered to prove the person's conduct on a specific  
   occasion.  One exception to this rule provides that evidence  
   that a defendant in a sexual offense case has committed other  
   sexual offenses is admissible to show the defendant's  
   disposition to commit such crimes.

   This bill will create an additional exception to the general  
   prohibition of character evidence for domestic violence cases.   
   The new provision provides that in a criminal action in which  
   the defendant is accused of an offense involving domestic  
   violence, evidence of the defendant's commission of other acts  
   of domestic violence is generally not made inadmissible by  
   Evidence Code Section 1101.  This will allow evidence of the  
   defendant's commission of other acts of domestic violence to be  
   admitted in a domestic violence prosecution, to show the  
   defendant's disposition to commit such offenses.

3)  Limits on the Scope of Admissible Evidence and Other  
   Protections.  While providing a mechanism for the admissibility  
   of character evidence in domestic violence cases, this bill  
   contains the following limitations and protections:

    a)  The court's authority to exclude evidence under Evidence  







                                                          SB 1876
                                                         Page 5

       Code Section 352 when its probative value is substantially  
       outweighed by the probability that it will "create  
       substantial danger of undue prejudice" or "necessitate  
       undue consumption of time."

    b)  Both the charged and uncharged acts must involve acts of  
       "domestic violence" as defined in Penal Code Section 13700.  
        This limits the admissible evidence under the provisions  
       of this bill to conduct which is similar in character to  
       the charged domestic violence crime, and which was  
       committed against the victim of the charged crime or  
       another similarly situated person.

    c)  The prosecution must disclose evidence of other acts to  
       the defendant, generally at least 30 days before trial,  
       allowing the defendant adequate time to prepare any  
       necessary rebuttal to the evidence.

    d)  The provisions of this bill limit the admissibility of  
       evidence of other acts of domestic violence to acts  
       occurring within 10 years of the charged offense, unless  
       the court finds that evidence of acts occurring more than  
       10 years prior to the charged offense should be admissible  
       "in the interest of justice."                            

4)  The Problem.  Domestic violence prosecutions are difficult  
   because of pervasive problems of victim non-cooperation  
   resulting from a variety of factors, including the victim's  
   intimidation by or dependence on the defendant, or his or her  
   fear of jeopardizing their relationship.  Where prosecution is  
   nevertheless necessary to stop extreme and escalating violence  
   by the abuser, prosecutors are presented to a unique degree  
   with 
the problem of making a case with a victim who is uncooperative,  
or even actively opposing the prosecution. 

5)  Proposed Amendments.  The amendments proposed by the author are  
   non substantive.  They would insert "or convictions" on page 3,  
   line 22, after "acts."  This amendment is not necessary because  
   a conviction is nothing more than form of evidence showing that  
   an act occurred.  The admissibility of an individual's prior  
   conviction is merely an exception to the hearsay rule, allowing  
   proof of a person's prior conviction to be admissible as  
   evidence that the underlying act occurred.  Evidence of a  
   conviction is only admissible if the underlying act - the  
   commission of the offense -- is also admissible.  Therefore,  
   provisions of the bill specifying that "evidence of acts  
   occurring more than 10 years before the charged offense is  
   inadmissible" would not be enhanced by the proposed amendment. 
 
6)  Statistics.  From 1989 to 1994, the number of domestic violence  
   calls for assistance received by law enforcement agencies  
   statewide increased from 188,581 to 251,233.  ( Crime and  
   Delinquency in California, 1994).  In addition, according to  
   the City and County of San Francisco, 64% of women killed in  
   San Francisco in 1995 died as a result of family violence. 







                                                          SB 1876
                                                         Page 6


7)  Other Legislation.  AB 2353 (Alpert) requires law enforcement  
   to serve domestic violence protective orders on the respondent  
   within a specified period of time and expands parole conditions  
   for person convicted of domestic violence offenses.  AB 2353 is  
   currently before the Senate Judiciary Committee.

   AB 3246 (Speier) removes provisions requiring the prosecution  
   to show that a defendant violated a protective order with an  
   act of violence or a credible threat of violence before he or  
   she can receive an increased punishment for having a prior  
   conviction for violating a protective order.   AB 3246 is  
   currently set for hearing by the Senate Criminal Procedure  
   Committee on June 25, 1996.

   AB 1994 (Burton/Alby) eliminates civil compromise in all  
   domestic violence cases.  AB 1994 is currently before the  
   Senate Criminal Procedure Committee.

   AB 2116 (Alby) authorizes a peace officer to arrest a domestic  
   violence offender without a warrant if the offender has  
   committed an assault or battery, or if the peace officer has  
   reasonable cause to believe that he or she committed the  
   assault or battery.  AB 2116 is currently in Enrollment.

   AB 2231 (Kuehl) makes various changes to the enforcement of  
   domestic violence-related protective orders, including those  
   issued in another state.  AB 2231 was passed by the Senate  
   Criminal Procedure Committee and is currently before the Senate  
   Judiciary Committee.

   AB 2170 (Knox) requires that all domestic violence perpetrators  
   be subject to mandatory arrest and taken into custody, not  
   merely cited and released, unless the arresting officer  
   determines that citing and releasing the violator would not  
   pose a danger to the victim.  AB 2170 is currently before the  
   Senate Appropriations Committee.

   SB 1444 (Solis) adds spousal rape to various provisions which  
   presently refer only to other forms of rape, as defined.  SB  
   1444 is scheduled to be 
heard today in this committee.

   AB 882, (Rogan), Chapter 439, Statutes of 1995, added Section  
   1108 to the Evidence Code, establishing a general rule of  
   admissibility in sexual offense cases for evidence that the  
   defendant has committed offenses of the same type on other  
   occasions.

 ARGUMENTS IN SUPPORT:  Proponents argue that in domestic violence  
cases, as in sexual offense cases, special evidentiary rules are  
justified because of the distinctive issues and difficulties of  
proof in this area.  Specifically, evidence of other acts is  
important in domestic violence cases because of the typically  
repetitive nature of domestic violence crimes, and because of the  
acute difficulties of proof associated with frequently  







                                                          SB 1876
                                                         Page 7

uncooperative victims and third-party witnesses who are often  
children or neighbors who may fear retaliation from the abuser and  
do not wish to become involved. 

 ARGUMENTS IN OPPOSITION:  Opponents argue that the rule excluding  
character evidence was developed because evidence of other acts is  
so prejudicial to the jury.  The prosecution has the burden of  
proving beyond a reasonable doubt that the individual committed  
the charged crimes; allowing evidence of prior acts to prove  
disposition to commit the crime in essence lowers the burden of  
proof for the prosecution because they will be able to argue that  
this crime was "in keeping with the person's character."

 REGISTERED SUPPORT/OPPOSITION:

 Support

The Office of the City Attorney of Los Angeles (Cosponsor) 
California Alliance Against Domestic Violence (Cosponsor) 
The Hon. Daniel E. Lungren, Attorney General 
Doris Take Crime Victims Bureau 
Contra Costa County District Attorney 
Los Angeles County District Attorney 
The Nicole Brown Simpson Charitable Foundation 
California District Attorneys Association 
California State Sheriff's Association 
San Francisco District Attorney's Family violence Project 
Sacramento County District Attorney
Contra Costa County District Attorney
Riverside County District Attorney 
Ventura County District Attorney 
Alameda County District Attorney 
Santa Barbara County District Attorney 
Santa Clara District Attorney 
Orange County District Attorney 
Stanislaus County District Attorney
Shasta County Domestic Violence Coordinating Council 
California Peace Officers' Association and California 
Police Chiefs' Association 
San Diego City Attorney's Criminal Division 
Alternatives to Domestic Violence 
Case de Esperanza, Inc. 
Marin Abused Women's Services 
Sexual Assault and Domestic Violence Center 
Shelter Services for Women 
El Dorado Women's Center 
Haven Women's Center 
Shasta County Women's Refuge 
DOVES of Big Bear Valley, Inc. 
EYE Counseling & Crisis Services 
Alliance Against Family Violence and Sexual Assault 
Haven House, Inc. 
Humboldt Women for Shelter 
WEAVE 
Calaveras Women's Crisis Center 
San Diego County YWCA 







                                                          SB 1876
                                                         Page 8

The Coalition Against Domestic and Sexual Violence 
YWCA - WINGS For Battered Women and their Children 
Monterey Peninsula YWCA 
Women Shelter 
Center for Domestic Violence Prevention 
South Lake Tahoe Women's Center 
San Diego Domestic Violence Council, Inc. 
Valley Oasis Shelter 
2 private citizens

 Opposition

American Civil Liberties Union
California Attorneys for Criminal Justice


 Analysis prepared by:  Jennifer P. Anderson / apubs / (916)  
445-3268